SHRI SUREN KUMAR SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal seeks to assail the Judgment and Order on Sentence, dated 25-11-2014, of the Court of Learned Special Judge (POCSO Act, 2012), South Sikkim at Namchi, in Sessions Trial (POCSO) Case No.01 of 2014, convicting the Appellant under Sections 9(m)/10 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act") and Section 354-B of the Indian Penal Code, 1860 (for short "IPC"). The Appellant was sentenced to undergo simple imprisonment of seven years and to pay a fine of Rs.50,000/- (Rupees fifty thousand) only, with a default stipulation. For the offence under Section 354-B of the IPC, he was sentenced to undergo simple imprisonment for a period of four years and to pay a fine of Rs.50,000/- (Rupees fifty thousand) only, also with a default clause of imprisonment. The sentences of imprisonment were ordered to run concurrently.

(2.) Before this Court, the grounds urged in Appeal, inter alia, were that as per the Section 164, Code of Criminal Procedure, 1973 (for short "Cr.P.C."), statement of the victim, it appeared that she had been raped, but in her deposition before the Court, the act amounted only to an attempt, the evidence being of a child witness and vacillating, therefore, deserve no consideration. The FIR, Exhibit 1, was lodged one month after the incident without assigning satisfactory reasons for the delay. That Sections 9(m)/10 of the POCSO Act and Section 354-B of the IPC cannot be attracted together and that, there is nothing in the Medical Report, Exhibit 5, of the victim to support the Prosecution case. Hence, in consideration of the anomalies in the Prosecution case, the impugned Judgement and Order on Sentence dated 25-11-2014 be set aside.

(3.) Per contra, Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, contended that the delay in lodging of the FIR does not effect the outcome of the case, the victim being a mere child of 10 years at the time of the incident, she would have been apprehensive of informing her parents of it, who in turn would be reluctant to lodge the FIR, in view of the future repercussions for the child. To fortify this submission, he has placed reliance on the decision of the Hon'ble Apex Court in State of Himachal Pradesh vs. Suresh Kumar alias DC, 2009 16 SCC 697 and Mohd. Imran Khan vs. State Government (NCT of Delhi), 2011 10 SCC 192. That there is no reason to disbelieve the statement of the victim only because she is a mere child, when her statement has been consistent in connection with the incident. On this point, the attention of this Court was drawn to the decisions in State of Himachal Pradesh vs. Prem Singh, 2009 1 SCC 420 and State of Uttar Pradesh vs. Krishna Master and Others, 2010 12 SCC 324. Thus, it is prayed that the Appeal deserves no indulgence and be dismissed.